The Fifth Amendment of the United States Constitution contains the eminent domain power The government is able to take private land as long as the taking is for public use AND for just compensation. One would think public use means taking land for community needs, such as schools, roads, levees, etc. However, after Kelo v. New London, public use can also mean and increase in tax dollars. Kelo v. City of New London, Conn., 545 U.S. 469, 483 (2005).

A problem that arises with the just compensation aspect of eminent domain is how to treat farmland. The value of farmland can skyrocket if the land will be used for development, as opposed to agriculture. In my hometown, peach and walnut orchards were acquired through eminent domain to make way for levee work. The farmers argued that while their land was farmland, the land's close proximity to development made the farmland more valuable. The farmers argued they would be able to sell the farmland for $35,000 and acre, as opposed to the $18,500 the state eventually paid. The farmers sued and a jury found in favor of the farmers. While the farmers did not get the full asking price, the court met everyone in the middle, and the farmers received an additional 1 million dollars.

Another issue that arises is regarding farming leaseholds. Caltrans used eminent domain to take a prune farm needed for a hwy project. When Caltrans took the farm under eminent domain, the prune farm was leased with ten years remaining on the leasehold. The farmer sued for the ten years remaining on his lease, or 1.19 million profit for ten years. The judge wrote, "Governmental taking of real property terminates any lease to which a condemned property is subject." The farmer therefore, was not able to seek any compensation.

Looking at other states and how they factor rural and agricultural needs regarding eminent domain, I was surprised to find none provide any protections. Eight states mention agriculture or rural, but this is used to show the ways in which eminent domain may be used. Arizona, Colorado, Iowa, Missouri, Oklahoma, Washington, and Wyoming all state eminent domain may be used for private reasons such as, "mining, or agriculture..." New York, in its eminent domain laws, allows the owners of agricultural lands to construct and maintain drain pipes on the land of others. California has no provisions regarding the rural or agriculture.

To help the needs of the farm, Doug LaMalfa (a state senator representing a large ag area), has authored some bills as well as tried to make a California constitutional amendment to better define the words "public use" and "just compensation". His proposed legislation and constitutional amendments would be favorable to agricultural needs and farmers. However, they have had little traction. it is difficult to find a reason why California, a state with rich agricultural history, would not have more protections for its agricultural sector.

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It is true that many laws don't afford adequate protection and compensation, arguably, to rural people. One California water law, does however, reserve a right of priority in rural areas. The group of laws are referred to as Place of Origin laws in California water law. These laws reserve a right of priority and seniority in water purveyors from counties in which the waters originate. In California, waters generally originate in the rural areas in the eastern and northern parts of the state. Thus, while the state can deliver these waters to municipalities like the Bay Area and Los Angeles, once the rural counties decide to assert their rights, they become senior. The only requirement is that the rural counties must need the water for development.